New Jersey Licensed Site Remediation Professional (LSRP) James Peterson\'s recent presentation regarding the LSRP\'s role in New Jersey site remediation

1. The Role of the Licensed Site Remediation Professional New Jersey Institute of Continuing Legal Education Seminar: “From Brownfields to Greenfields: The Legal Aspects of Reclaiming Brownfields” New Jersey Law Center One Constitution Square New Brunswick, New Jersey July 27, 2011 Jim Peterson, PG, LSRP - President Princeton Geoscience, Inc. jim@princetongeoscience.com Tel. 609-279-0008 1

2. INTRODUCTION Overview: Old vs. New Paradigms Key Responsibilities of the LSRP LSRP Code of Ethics Questions 2

3. Overview: Old vs. New Hierarchy Old Days After SRRA 3

4. Overview: Old vs. New Work Flow Old Days After SRRA A More Linear Path, with Opportunity for Faster Progress through Remedial Stages Slow, Inefficient: Cycle Repeats with each Remedial Stage (PA/SI, RI, RA) 4

5. Overview: A Time of Change for Environmental Consultants As an LSRP, consultant takes on new and different responsibilities Relationship with client, NJDEP, public and employer fundamentally changed LSRP One LSRP’s First Impression of His New Role under SRRA 5

6. Overview: A Time of Change for Environmental Consultants (cont’d) Good News Specific Responsibilities of LSRP Spelled out throughout SRRA LSRP Code of Ethics Provides Much Clarity Program is Developing Quickly, with Good Results Effective Outreach by NJDEP, LSRPA, Industry Groups SRRA List Server http://www.nj.gov/dep/srp/srra/sub.htm NJDEP LSRP Program Contacts http://www.nj.gov/dep/srp/srra/srra_contacts.htm LSRPA Website http://www.lsrpa.org/ Some Advantageous Provisions in Guidance Technical Consultations with NJDEP Bottom Line – Much Better than First Impressions 6

7. Key Responsibilities of the LSRP Follow LSRP Code of Ethics - SRRA 16 Certify Documents Submitted to NJDEP - SRRA 14(a) Work was performed LSRP managed, supervised or performed Work and the submitted documents consistent with applicable remediation requirements 7

8. Key Responsibilities of the LSRP (cont’d) Make Decisions to Meet New Jersey Standards - SRRA 14(c)1 Apply New Jersey Regulations - SRRA 14(c)2 Apply NJDEP-issued Technical Guidance – SRRA 14(c)3 8

9. Key Responsibilities of the LSRP (cont’d) Additional Guidance May be Used - SRRA 14(c)4 Relevant guidance from USEPA, or other states; Other relevant, applicable, and appropriate methods and practices that ensure the protection of the public health and safety, and of the environment Criteria for Use of Such Additional Guidance No specific requirement in NJDEP-adopted technical standards for site remediation, and LSRP, using professional judgment, determines that existing NJDEP guidance not appropriate or necessary to meet remediation requirements LSRP must Document Justification for Use Separate of Existing Variance Provisions at NJAC 7:26E-1.7 9

10. Key Responsibilities of the LSRP (cont’d) Maintenance of Data, Documents, Information – SRRA 20 Shall maintain and preserve all data, documents and information concerning remediation activities at each contaminated site Including … technical records and contractual documents, raw sampling and monitoring data, whether or not the data and information, including technical records and contractual documents, were developed by the licensed site remediation professional …that relate in any way to the contamination at the site Three electronic copies of the records shall be submitted to the department at the time the response action outcome is filed with the department. 10

11. Key Responsibilities of the LSRP (cont’d) Issues Response Action Outcome (RAO) – SRRA 14(d) …when LSRP determines that the site has been remediated so that it is in compliance with all applicable statutes, rules and regulations protective of public health and safety and the environment RAO issued to person responsible for conducting the remediation; copy filed with NJDEP at the same time 11

12. Key Responsibilities of the LSRP (cont’d) Some Other LSRP Responsibilities Prepares and updates remediation cost estimates used as basis for determining amount of Financial Assurance Prepares applications for Remedial Action Permits issued by NJDEP Conducts Public Notification and Outreach Signs Remediation Certification (replaces Remediation Agreement) Signs Annual Remediation Fee reporting form Signs Most Required NJDEP Forms (41 total forms at present) 12

13. LSRP Code of Ethics – SRRA 16 All LSRPs are bound by a strict code of ethics, violation of which could result in the assessment of penalties as well as suspension or revocation of their licenses 26 commandments, in an A to Z listing Section heading, “Protection of public health, safety, environment highest priority” sets the tone. 13

14. LSRP Code of Ethics (cont’d) SRRA 16 (a) - A licensed site remediation professional's highest priority in the performance of professional services shall be the protection of public health and safety and the environment. 14

15. LSRP Code of Ethics (cont’d) SRRA 16 (b) - A licensed site remediation professional shall exercise reasonable care and diligence, and shall apply the knowledge and skill ordinarily exercised by licensed site remediation professionals in good standing practicing in the State at the time the services are performed. Standard of care will be identified based on guidance, licensing board decisions As with other aspects of remediation, it likely will evolve 15

16. LSRP Code of Ethics (cont’d) SRRA 16 (c) - A licensed site remediation professional shall not provide professional services outside the areas of professional competency, unless the licensed site remediation professional has relied upon the technical assistance of another professional whom the licensed site remediation professional has reasonably determined to be qualified by education, training, and experience. A licensed site remediation professional shall not perform services that constitute the practice of professional engineering unless the licensed site remediation professional is a professional engineer licensed in the State. Work within areas of competency only Reliance on others will be necessary for most LSRPs - requires careful consideration 16

17. LSRP Code of Ethics (cont’d) SRRA 16 (d) - A licensed site remediation professional retained by a person responsible for conducting the remediation shall notify the department within 15 calendar days after being retained.In addition, a licensed site remediation professional shall notify the department within 15 calendar days after being released from responsibility for a remediation if the release occurs prior to issuance of the response action outcome for the site by the licensed site remediation professional. LSRP must notify NJDEP within 15 days of retention / being released Careful selection of LSRP is important 17

18. LSRP Code of Ethics (cont’d) SRRA 16 (e) - A licensed site remediation professional and the person responsible for conducting the remediation shall correct any deficiency the department identifies in a document submitted concerning a remediation. The deficiency shall be corrected in accordance with timeframes established by the department. 18

19. LSRP Code of Ethics (cont’d) SRRA 16 (f) - A licensed site remediation professional may complete any phase of remediation based on remediation work performed under the supervision of another licensed site remediation professional, provided that the licensed site remediation professional: (1) reviews all available documentation on which he relies; (2) conducts a site visit to observe current conditions and to verify the status of as much of the work as is reasonably observable; and (3) concludes, in the exercise of independent professional judgment, that there is sufficient information upon which to complete any additional phase of remediation and prepare workplans and reports related thereto. LSRP “takes ownership” if relying on work of another LSRP Must review all documentation, visit site and conclude that work by previous LSRP provides sufficient basis to move forward 19

20. LSRP Code of Ethics (cont’d) SRRA 16 (g) - A licensed site remediation professional who has taken over the responsibility for the remediation of a contaminated site from another licensed site remediation professional shall correct all deficiencies in a document submitted by the previous licensed site remediation professional identified by the department in accordance with timeframes established by the department. LSRP responsible to correct deficiencies identified by NJDEP in prior LSRP’s submittals Within timeframes established by NJDEP 20

21. LSRP Code of Ethics (cont’d) SRRA 16 (h) - A licensed site remediation professional shall not certifyany document submitted to the department unless the licensed site remediation professional has managed, supervised or performed the work that is the basis of the submission, or has periodically reviewed and evaluated the work performed by other personsthat forms the basis for the information in the submission, or has completed the work of another licensed site remediation professional and has concluded such work is reliable pursuant to subsection f. of this section. Several roles for LSRPs Certify documents if: Managed, supervised or performed the work Periodically reviewed and evaluated work of others Completed work of another LSRP 21

22. LSRP Code of Ethics (cont’d) SRRA 16 (i) - A licensed site remediation professional shall exercise independent professional judgment, comply with the requirements and procedures set forth in the provisions of P.L.2009, c.60 (C.58:10C-1 et al.), make a good faith and reasonable effort to identify and obtain the relevant and material facts, data, reports and other information evidencing conditions at a contaminated site for which he is responsible that is in possession of the owner of the property, or that is otherwise available, and identify and obtain whatever additional data and other information as the licensed site remediation professional deems necessary. The licensed site remediation professional shall disclose and explain in any document submitted to the department any facts, data, information, qualifications, or limitations known by the licensed site remediation professional that are not supportive of the conclusions reached in the document. Independent professional judgment is a serious responsibility LSRP must make efforts to understand site thoroughly Must also disclose information not supportive of LSRP’s conclusions The “truth, the whole truth and nothing but the truth” 22

23. LSRP Code of Ethics (cont’d) SRRA 16 (j) - If a licensed site remediation professional identifies a condition at a contaminated site that in his independent professional judgment is an immediate environmental concern, then the licensed site remediation professional shall: (1) immediately verbally advise the person responsible for conducting the remediation of that person's duty to notify the department of the condition; and (2) immediately notify the department of the condition by calling the department’s telephone hotline. LSRP to identify IECs using independent professional judgment Must immediately notify responsible party of reporting responsibility and call NJDEP hotline 23

24. LSRP Code of Ethics (cont’d) SRRA 16 (k) - If a licensed site remediation professional obtains specific knowledge that a discharge has occurred on a contaminated site for which he is responsible, the licensed site remediation professional shall: (1) notify the person responsible for conducting the remediation of the existence of the discharge; and (2) notify the department of the discharge by calling the department’s telephone hotline. The person responsible for conducting the remediation shall also be responsible for notifying the departmentof the existence of the discharge. The provisions of this subsection shall not apply to a discharge that may be a result of the existence of historic fill material. LSRP must report discharge on site for which he is responsible by calling NJDEP hotline Responsible party also has reporting obligation Not applicable to historic fill 24

25. LSRP Code of Ethics (cont’d) SRRA 16 (l) - If a licensed site remediation professional learns of an action or decision by a client that results in a deviation from the remedial action workplan or other report concerning the remediation developed by the licensed site remediation professional, the licensed site remediation professional shall promptly notify the client and the department, in writing, of the deviation. LSRP must notify client and NJDEP of actions by client that result in deviation from workplan or other report developed by LSRP Examples: Changes to operation of remedial system; removal of engineering control 25

26. LSRP Code of Ethics (cont’d) SRRA 16 (m) - A licensed site remediation professional shall not reveal information obtained in a professional capacity, except as may be authorized or required by law, without the prior consent of the client, if the client has notified the licensed site remediation professional, in writing, that the information is confidential. The provisions of this subsection shall not apply to information that is in the public domain. LSRP not to reveal confidential information identified in writing by client without prior consent of client This and other SRRA provisions may warrant legal consultation 26

27. LSRP Code of Ethics (cont’d) SRRA 16 (n) - A licensed site remediation professional who learns of material facts, data or other information subsequent to the completion of a report concerning a phase of remediation, which would result in a report with material differences from the report submitted, shall promptly notify the client and the department in writing of those facts, data, information, and circumstances. LSRP must promptly notify client and NJDEP when they learn of new facts, data or other information that would result in report with material differences from previously submitted report 27

28. LSRP Code of Ethics (cont’d) Must promptly notify client and NJDEP of material facts, data or other information not disclosed in report previously submitted by another LSRP, and of the related circumstances Example:AOC not addressed SRRA 16 (o) - A licensed site remediation professional who succeeds another licensed site remediation professional before the issuance of a response action outcome, and who learns of material facts, data or other information concerning a phase of the remediation for which a report was submitted to the department and the material facts, data or other information were not disclosed in the report, shall promptly notify the client and the department in writing of those facts, data, information, and circumstances. 28

29. LSRP Code of Ethics (cont’d) SRRA 16 (p) - A licensed site remediation professional shall not allow the use of his name by a person, and shall not associate with a person in a business venture, if the licensed site remediation professional knows or should know that the person engages in fraudulent or dishonest business or professional practices regarding the professional responsibilities of a licensed site remediation professional. LSRP must not work for or with persons he knows or should know engage in fraudulent or dishonest business or professional practices regarding LSRP responsibilities 29

30. LSRP Code of Ethics (cont’d) SRRA 16 (q) - A licensed site remediation professional shall cooperate in an investigation by the board or the departmentby promptly furnishing, in response to formal requests, orders or subpoenas, any information the board or the department, or persons duly authorized by the board or the department, deems necessary to perform its duties. In an investigation by the board of a license application or a license suspension or revocation, a licensed site remediation professional shall not: (1) knowingly make a false statement of material fact; (2) fail to disclose a fact necessary to correct a material misunderstanding known by the licensed site remediation professional to have arisen in the matter; (3) knowingly and materially falsify, tamper with, alter, conceal, or destroy any document, data record, remedial system, or monitoring device that is relevant to the investigation, without obtaining the prior approval of the department; or (4) knowingly allow or tolerate any employee, agent, or contractor of the licensed site remediation professional to engage in any of the foregoing activities. Must thoroughly cooperate with licensing board or NJDEP during an investigation No lying; failure to disclose facts needed to clarify misunderstandings; tampering with documents, data, etc. 30

31. LSRP Code of Ethics (cont’d) Joint responsibility of supervising/ reviewing LSRP for violations by another LSRP whose services he orders, directs or agrees to, if LSRP: Knows the services constitute a violation, and Fails to take steps to avoid or mitigate SRRA 16 (r) - A licensed site remediation professional shall be jointly responsible for a violation of any provision of this section committed by another licensed site remediation professional whose work he supervises or reviews if:(1) the licensed site remediation professional orders, directs, or agrees to the provision of professional services conducted or prepared by another licensed site remediation professional under his supervision; (2) the licensed site remediation professional knows that the professional services constitute a violation of this section; and (3) the licensed site remediation professional fails to take reasonable steps to avoid or mitigate the violation. 31

32. LSRP Code of Ethics (cont’d) SRRA 16 (s) - A licensed site remediation professional shall comply with all conditions imposed by the board as a result of a license suspension or other disciplinary proceeding conducted by the board. 32

33. LSRP Code of Ethics (cont’d) SRRA 16 (t) - A licensed site remediation professional shall inform a client or prospective client of any relevant and material assumptions, limitations, or qualifications underlying their communication. Evidence that a licensed site remediation professional has provided the client or prospective client with timely written documentation of these assumptions, limitations, or qualifications shall be deemed by the board or the department to have satisfied the requirements of this subsection. Inform client / prospective client of assumptions, limitations, or qualifications Document that such information has been provided in a timely manner Examples: Work scope descriptions contained in contracts, change orders 33

34. LSRP Code of Ethics (cont’d) SRRA 16 (u) - A licensed site remediation professional shall not state or imply, as an inducement or a threat to a client or prospective client, an ability to improperly influence a government agency or official. 34

35. LSRP Code of Ethics (cont’d) SRRA 16 (v) - In any description of qualifications, experience, or ability to provide services, a licensed site remediation professional shall not knowingly: (1) make a material misrepresentation of fact; (2) omit a fact when the omission results in a materially misleading description; or (3) make a statement that, in the opinion of the board, is likely to create an unjustified expectation about results the licensed site remediation professional may achieve, or state or imply that the licensed site remediation professional may achieve results by means that violate the provisions of applicable environmental statutes, rules or regulations, including the provisions of P.L.2009, c.60 (C.58:10C-1 et al.). LSRP’s descriptions of qualifications, experience, service capabilities must be: factual complete not misleading Cannot state or imply LSRP may achieve results by means that violate statutes, rules or regulations S P L R 35

36. LSRP Code of Ethics (cont’d) SRRA 16 (w) - A licensed site remediation professional shall provide any notification to the board or the department required pursuant to this section, even if the licensed site remediation professional is discharged by the client prior to doing so. Client dismissal of LSRP does not end LSRP’s obligation to report to the licensing board or NJDEP 36

37. LSRP Code of Ethics (cont’d) SRRA 16 (x) - A licensed site remediation professional shall not accept compensation, financial or otherwise, for professional services pertaining to a contaminated site from two or more persons whose interests are adverse or conflicting unless the circumstances are fully disclosed and agreed to by all clients engaging the licensed site remediation professional. Difficult balance to strike, but following Code of Ethics makes it easier 37

38. LSRP Code of Ethics (cont’d) LSRP cannot be an employee of the responsible party or related entities Implications for some larger corporations conducting remediation with in-house staff SRRA 16 (y) - A licensed site remediation professional shall not be a salaried employee of the person responsible for conducting the remediation, or any related entities, for which the licensed site remediation professional is providing remediation services. 38

39. LSRP Code of Ethics (cont’d) LSRP not to allow personal financial or employment considerations / pressures to affect their professional judgment SRRA 16 (z) - A licensed site remediation professional shall not allow any ownership interest, compensation, or promise of continued employment, of the licensed site remediation professional or any immediate family member, to affect the professional services provided by the licensed site remediation professional. 39

40. Jim Peterson, PG, LSRP - President Princeton Geoscience, Inc. 609-279-0008 jpeterson@princetongeoscience.com 40